RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01767 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His official records be corrected to reflect the following changes on his DD Form 214, Report of Separation from Active Duty: 1. His General (Under Honorable Conditions) discharge be upgraded to Honorable. 2. His Narrative Reason for Separation be changed to “Secretarial Authority.” 3. His Separation Program Designator (SPD) code be changed to “JFF” (Secretarial Authority). 4. His Reentry (RE) Code be changed to “1J” (Eligible to reenlist but elected to separate). ________________________________________________________________ APPLICANT CONTENDS THAT: He was discharged on the basis of homosexual conduct, and his discharge did not involve any aggravating factors. Accordingly, his case meets the criteria necessary to merit an upgrade under the current policy. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Air Force on 3 Jul 72. On 12 May 75, the applicant’s commander issued him non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ). The reason for this action was that on or about 6 May 75, the applicant violated a lawful general regulation by having in his possession an amphetamine. On 6 Jun 75, the applicant’s commander notified him he was recommending him for discharge based upon his alleged frequent participation in homosexual activity. The commander’s reasons for this action were: a. A sworn statement from another Sergeant stating the applicant propositioned him to engage in homosexual activity. b. An interview with an Special Agent of the Office of Special Investigation (OSI) in which the agent claimed the applicant made advances and suggestions to him about participating in homosexual activities. c. Nineteen First Class letters addressed to the applicant from other male associates containing homosexual connotations. The applicant acknowledged receipt, waived his right to a hearing before an administrative discharge board, and submitted statements on his behalf. On 6 Jun 75, the applicant’s commander recommended him for discharge for frequent participation in homosexual activity. On 16 Jun 75, the case was found to be legally sufficient. The Staff Judge Advocate recommended a General discharge, stating “While his job performance has been good in the past, it is clouded by his present misconduct and the recent Article 15 action for illegal possession of amphetamine.” On 24 Jun 75, the discharge authority directed the applicant be furnished a General discharge and the he was so discharged on 1 Jul 75. On 10 Sep 11, the Under Secretary of Defense issued guidance pertaining to correction of military records requests resulting from the repeal of Title 10, Section 654, commonly known as “Don’t Ask, Don’t Tell (DADT).” In a memorandum, dated 20 Sep 11, the Under Secretary of Defense published guidance that Service Discharge Review Boards should normally grant requests to change the narrative reason for discharge (the change should be to “Secretarial Authority”), requests to re- characterize the discharge to honorable, and/or request a change to the reentry code to an immediately-eligible-to-reenter category when both of the following conditions are met: (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT and (2) there were no aggravating factors in the record, such as misconduct. Although each request must be evaluated on a case-by-case basis, the award of an honorable or general (under honorable conditions) discharge should normally be considered to indicate the absence of aggravating factors. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOA recommends denial of the applicant’s request to change his Reenlistment (RE) Code. The Under Secretary of Defense guidance repealing DADT states a request to change an RE Code to 1J should be granted for members separated under DADT or a similar policy unless there was misconduct present. The applicant’s record did reveal evidence of misconduct as he accepted NJP for drug possession. The complete AFPC/DPSOA evaluation is at Exhibit C. AFPC/DPSOS recommends denial of the applicant’s request to upgrade the characterization of this discharge, but recommends changing the narrative reason for the discharge to read “Secretarial Authority,” and the Separation Program Designator (SPD) code to “JFF.” Although the discharge was properly processed according to the applicable regulation, the applicant’s discharge record indicates the discharge was based solely on a policy similar to DADT. Therefore, a change in narrative reason for separation and SPD Code is appropriate. However, because the member’s record includes an Article 15 for drug possession, conduct which could have formed the basis for the noted character of service, the character of his service should not be upgraded to honorable. The complete AFPC/DPSOS evaluation is at Exhibit D. AFPC/JA agrees with both DPSOA and DPSOS, and recommends changing the narrative reason for discharge and SPD code, but recommends denial of the applicant’s request to change the characterization of his service and RE Code. While the applicant was discharged based solely on a policy similar to DADT, his record included evidence of other misconduct. This misconduct was considered at the time of his discharge and the legal review associated with the action indicates the facts and circumstances surrounding the discharge and the Article 15 warranted a general (under honorable conditions) discharge. As such, the applicant’s case, when it comes to the character of his service and RE code, does not meet the DoD guidance as his other misconduct is an aggravating factor. The complete AFPC/JA evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel argues that it would be unjust for the Board to deny him an upgrade to his discharge characterization purely on the basis of this single Article 15. The drug in question for which he received the Article 15 was LSD, but unbeknownst to him, the drug was stored on pieces of paper in such a way that, although he possessed the paper, he was unaware of their drug content until an accusation was made against him. He did not intentionally transgress military policy. Under the modern standard governing discharge characterizations within the Air Force, a service member merits a General discharge where “an airman’s service has been honest and faithful,” and “significantly negative aspects of the airman’s conduct or performance of duty outweigh positive aspects of the airman’s military record.” The regulations further indicate that a service member’s characterization should usually be based on “a pattern of behavior rather than an isolated incident.” In addition, consideration should be given to “the frequency and seriousness of the disciplinary infractions” and the “total service in the current enlistment.” The applicant’s record overwhelmingly demonstrates his positive service. Although it cannot be disputed that the positive service was considered at the time of the applicant’s discharge, this by no means indicates that the assessment of his service would have been the same had the discharge authority operated under current military policy. Homosexual conduct would have been considered negative information at the time of the applicant’s discharge and, when considered in conjunction with the Article 15, may very well have given the appearance of significantly more negative information in the applicant’s record of service than would appear today, under modern policy. The General discharge and the RE Code of “2” did not accurately characterize the applicant’s quality of service at the time of his separation, because his single Article 15 does not outweigh the many aspect of his service. Had the applicant’s case been considered under the modern regulations, there is substantial doubt that he would have received the same discharge characterization as he currently bears. Further, under modern regulations, he could not have received an RE Code of “2” because he would not have involuntarily been discharged at all (Exhibit G). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was untimely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request to change his Narrative Reason for Separation and Separation Program Designator (SPD) code. We took notice of the applicant's complete submission in judging the merits of the case, to include his response to the Air Force evaluations, and agree with the opinions and recommendations of AFPC/JA and AFPC/DPSOS and adopt their rationale as the basis for our conclusion that in view of the repeal of the law commonly known as “Don’t Ask, Don’t Tell (DADT),” it would be in the interest of justice to correct the applicant’s narrative reason for separation and SPD code to reflect “Secretarial Authority” and “JFF,” respectively. As for the applicant’s remaining requests to upgrade his discharge to honorable and change his associated reenty (RE) code, a majority of the Board is convinced that it would also be in the interest of justice to recommend granting these aspects of his request. We note the comments of AFPC/JA and AFPC/DPSOA indicating the applicant’s misconduct, which resulted in his receipt of non-judicial punishment, constitutes an aggravating factor; however, as the sole basis for the discharge action was the applicant’s homosexual conduct, and his receipt of NJP did not form any part of the basis for the action, the majority believes justice would be served if the records were corrected to reflect the applicant was honorably discharged and issued an RE code of “3K.” ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT, be corrected to show that on 1 Jul 75, he was honorably discharged, issued a narrative reason for separation of “Secretarial Authority,” Separation Program Designator (SPD) code of “JFF,” Reentry (RE) Code of “3K,” and furnished an Honorable Discharge certificate. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-01767 in Executive Session on 17 Jan 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the applicant’s narrative reason for separation and SPD code. By majority vote, the Board voted to correct the records to reflect the applicant was honorably discharged and issued an RE code of “3K.” XXXX voted to deny these aspects of the applicant's request and has submited a minority report, which is at Exhibit H. The following documentary evidence pertaining to AFBCMR Docket Number BC-2012- 01767 was considered: Exhibit A. DD Form 149, dated 26 Apr 12, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOA, dated 26 Jul 12. Exhibit D. Letter, AFPC/DPSOS, dated 6 Aug 12. Exhibit E. Letter, AFPC/JA, dated 10 Sep 12. Exhibit F. Letter, SAF/MRBR, dated 17 Sep 12. Exhibit G. Letter, Counsel, dated 10 Oct 12, w/atch. Exhibit H. Minority Report, dated 4 Feb 13. Panel Chair